Immigration law's organizing principles

University of Pennsylvania Law Review

Volumn 157, Issue 2, 2008, Pages 341-393

  Cox, Adam B ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 61349175333     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (220)

1. See infra text accompanying notes 23-24.
2. See infra text accompanying notes 26-44.
3. Of course, as this Article makes clear, it is never possible for a state to pursue a pure strategy of selection or a pure strategy of regulation because all legal rules will produce a mix of both consequences.
4. See generally Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 STAN. L. REV. 809, 811-12 (2007) (discussing the need for immigration scholarship to focus more on questions of institutional design).
5. This use is intuitive and unsurprising given the fact that immigration law is centrally concerned with the movement of persons across borders.
6. This definition is necessarily a bit artificial. "Regulation" is commonly used to capture all forms of behavioral regulation and thus could comfortably be understood to include even the regulation of sorting behavior. For ease of exposition, however, I will use "regulation" as the obverse of "selection," as this makes the two concepts analytically precise.
7. For a small sample of this work, see sources cited infra note 13.
8. Ch. 26, 22 Stat. 58 (repealed 1943).
9. See Ch. 141, §1, 18 Stat. 477, 477 (1875) (repealed 1974) (restricting entry "of any subject of China, Japan, or any Oriental country" if the subject entered a contract for "lewd and immoral purposes"). Prior to the passage of the Page Act, the federal government had never formally limited the admission of certain classes of potential immigrants. This is not to say that there was no regulation of migration prior to this date.
10. See, e.g., Gerald L. Neuman, The Lost Century of Immigration Law (1776-1875), 93 COLUM. L. REV. 1833, 1841-43 (1993) (examining state laws that had the effect of regulating some migration during the nation's first century). But it was only in response to the growing backlash against Chinese immigrants that formal federal immigration controls were finally introduced.
11. See Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 COLUM. L. REV. 641, 698-702 (2005).
12. Chinese Exclusion Act §1, 22 Stat. at 59 (suspending entry of Chinese laborers for ten years).
13. 130 U.S. 581, 604-10 (1889) (stating that the power to regulate immigration cannot be "restrained on behalf of any one" when exercised by the federal government in the interests of the country).
14. For discussions of this constitutional exceptionalism, see GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS, AND FUNDAMENTAL LAW (1996);
15. Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLAL. REV. 1 (1998);
16. Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 SUP. CT. REV. 255. For a more recent example from the Supreme Court, consider Fiallo ex rel. Rodriguez v. Bell, 430 U.S. 787 (1977). In that case, the Court considered the constitutionality of an admission rule that facially discriminated on the basis of sex. While the Supreme Court was beginning around that time to invalidate sex-discriminatory statutes in a variety of contexts, it declined to apply serious scrutiny to the admission policy. Suggesting the exceptionalism of immigrant-selecting rules, Justice Powell, writing for the majority, noted that "over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. Our cases have long recognized the power to expel or exclude aliens as . . . largely immune from judicial control." Id. at 792 (citations and internal quotation marks omitted).
17. 118 U.S. 356(1886).
18. Id. at 373-74.
19. See id. at 369.
20. See id. at 369-74.
21. For a discussion of the potential relevance of the status (territorial or otherwise) of the rights-claimant in immigration jurisprudence, see Adam B. Cox, Citizenship, Standing, and Immigration Law, 92 CAL. L. REV. 373, 388-92 (2004).
22. See infra text accompanying notes 45-52.
23. See, e.g., THOMAS ALEXANDER ALEINIKOFF ET AL., IMMIGRATION AND CITIZENSHIP 212 (6th ed. 2008) (asserting that "constitutional law relating to immigration may differ from [that] relating to noncitizen immigrants");
24. see also Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 MLNN. L. REV. 1625 (2007).
25. 149 U.S. 698 (1893).
26. See id. at 707 ("The right of a nation to expel or deport foreigners, who have not been naturalized or taken any steps toward becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.").
27. See, e.g., Bridges v. Wixon, 326 U.S. 135, 148 (1945) ("Freedom of speech and of press is accorded aliens residing in this country." (citing Bridges v. California, 314 U.S. 252, 263 (1941))).
28. See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491-92 (1999) ("When an alien's continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.");
29. Dennis v. United States, 341 U.S. 494, 551 n.15 (1951) (Frankfurter, J., concurring) (noting that immigration laws require deportation of aliens who advocate overthrowing the government by force). Relatedly, modern immigration law appears to make persons deportable for mere membership in disfavored organizations-though mere membership by a resident noncitizen in a disfavored organization, such as the Communist Party, cannot, as a constitutional matter, be criminally sanctioned. See 8 U.S.C. §1227(a)(4)(B) (2006) (making deportable any noncitizen who is a member of a terrorist organization described in 8 U.S.C. § 1182(a)(3)(B)).
30. Justice Murphy's famous concurrence in Bridges v. Wixon, 326 U.S. 135, 157-66 (1945) (Murphy, J., concurring) is but one example. That case concerned deportation for membership in the Communist Party. In the course of concluding that the deportation statute violated the First Amendment, Murphy argued that such a deportation rule should not be insulated by the plenary power for two reasons. First, he argued that the Constitution protected all persons within the territory of the United States. Id. at 161-62.
31. Second, and more important for present purposes, he argued that the distinction between selection and regulatory rules was illusory: Any other conclusion [than that the First Amendment applied] would make our constitutional safeguards transitory and discriminatory in nature. Thus the Government would be precluded from enjoining or imprisoning an alien for exercising his freedom of speech. But the Government at the same time would be free, from a constitutional standpoint, to deport him for exercising that very same freedom. Id. at 162.
32. See DANIEL KANSTROOM, DEPORTATION NATION: OUTSIDERS IN AMERICAN HISTORY (2007).
33. See id. at 4-6, 91-130.
34. See 8 U.S.C. § 1227(a) (listing grounds of deportability).
35. See KANSTROOM, supra note 26, at 5-6 (suggesting that "extended border control" laws, in contrast with "post-entry social control" laws, are legitimately derived from sovereignty).
36. See id. at 5-6, 10-12, 107-30, 243 (cataloging various forms of post-entry social-control deportation implemented by the federal government). To be sure, Kanstroom is displeased with the use of deportation in all its forms, including as "extended border control." But he sees that type of deportation rule as conceptually distinct from, and less egregious than, the use of deportation as "social control."
37. See id. at 243 ("As a 100-plus years social experiment, the U.S. deportation system has caused considerable harm and done little demonstrable good. . . . The dramatic recent increase in postentry social control deportation warrants special concern.").
38. See supra text accompanying notes 21-23 (discussing this reading of Fong Yue Ting and contrasting criminal cases).
39. See KANSTROOM, supra note 26 at 18 ("We therefore shall not view deportation law solely as an adjunct to sovereignty or as merely part of the immigration border control system.").
40. See, e.g., ALEINIKOFFET AL., supra note 20, at 1191.
41. See, e.g., 8 U.S.C. §§ 1611-1613, 1621-1622, 1631-1632 (2006) (limiting lawful permanent residents' access to public assistance).
42. See, e.g., Cabell v. Chavez-Salido, 454 U.S. 432, 444-47 (1982) (discussing permissible employment restrictions on lawful permanent residents);
43. ALEINIKOFF ET AL., supra note 20, at 360-96 (discussing employment restrictions on temporary migrants).
44. See, e.g., ALEXANDER KEYSSAR, THE RIGHT TO VOTE 65-67, 82-87 (2000) (describing the development of restrictions on voting by noncitizens);
45. NEUMAN, supra note 13, at 70-71 (same).
46. See, e.g., ARIZ. REV. STAT. ANN. § 46-140.01 (2005) (requiring verification of immigration status for public benefits and classifying nondisclosure of violations of federal immigration law by a state employee as a misdemeanor);
47. COLO. REV. STAT. § 24-76.5-103 (2007) (mandating verification of lawful presence for adults applying for local, state, or federal benefits);
48. GA. CODE ANN. §50-36-1 (2006) (same as Colorado).
49. See, e.g., Graham v. Richardson, 403 U.S. 365, 371-72 (1971) ("[T]he Court's decisions have established that classifications based on alienage . . . are inherently suspect and subject to close judicial scrutiny.").
50. See, e.g., Mathews v. Diaz, 426 U.S. 67, 81-82 (1976) ("The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization." (footnote omitted)).
51. See, e.g., id. at 81 (noting the increased judicial deference to the federal government for regulating immigration and naturalization);
52. De Canas v. Bica, 424 U.S. 351, 358 n.6 (1976) (noting that state law cannot interfere with the federal power to regulate immigration);
53. Richardson, 403 U.S. at 377 (noting the national government's "broad constitutional power" to regulate the terms and conditions of naturalization);
54. League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 786-87 (CD. Cal. 1995) (holding that several provisions of California Proposition 187 were unconstitutional because "the authority to regulate immigration belongs exclusively to the federal government").
55. HIROSHI MOTOMURA, AMERICANS IN WAITING 13, 189-200 (2006) [hereinafter MOTOMURA, AMERICANS IN WAITING];
56. cf. Hiroshi Motomura, Immigration and Alienage, Federalism and Proposition 187, 35 VA. J. INT'L L. 201, 202-03 (1994) (recognizing some tension between the categories of immigration rules and alienage rules, but still relying on this organizing distinction).
57. Cf MOTOMURA, AMERICANS IN WAITING, supra note 41, at 191 (suggesting that groups can demand that new members meet higher standards than some current members).
58. See id. at 190-91.
59. See id. at 191.
60. See Chy Lung v. Freeman, 92 U.S. 275, 279-80 (1875) (striking down a California statute requiring ship masters to pay bonds for certain categories of immigrants arriving on their vessels);
61. Henderson v. Mayor of New York, 92 U.S. 259, 269-71 (1875) (striking down a similar New York statute);
62. The Passenger Cases, 48 U.S. (7 How.) 283, 410 (1849) (holding that a state tax imposed on arriving noncitizens was unconstitutional).
63. See Migration Policy Inst., State and Local Immigration Regulation, http://www.migrationinformation.org/integration/regulation.cfm (last visited Nov. 15, 2008) (cataloging recent state and local regulatory efforts).
64. See id.
65. See, e.g., Toll v. Moreno, 458 U.S. 1, 10 (1982) ("Federal authority to regulate the status of aliens derives from . . . the Federal Government's power '[t]o establish [a] uniform Rule of Naturalization' . . . ." (alterations in original) (quoting U.S. CONST. art. I, §8, cl. 4));
66. Hines v. Davidowitz, 312 U.S. 52, 62 (1941) ("[T]he supremacy of the national power . . . over immigration, naturalization, and deportation, is made clear by the Constitution . . . .");
67. Chae Chan Ping v. United States, 130 U.S. 581, 603 (1889) (stating that the power to prohibit immigration is reserved to the federal government);
68. Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983) ("[T] he regulation of immigration is unquestionably an exclusive federal power . . . ."), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999);
69. cf. Ariz. Contractors Ass'n v. Candelaria, 634 F. Supp. 2d 1036, 1048 (D. Ariz. 2008) (noting that immigration has historically been an exclusive federal concern).
70. See generally Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 VAND. L. REV. 787, 807-26 (2008) (summarizing the claim of federal exclusivity over immigration regulation);
71. Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567, 575-76 (2008) (surveying Supreme Court treatment of federal exclusivity);
72. Michael J. Wishnie, Laboratories of Bigotry"? Devolution of the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. REV. 493, 501-04 (2001) (arguing in favor of federal exclusivity).
73. See, e.g., Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 764-65 (N.D. Tex. 2007) ("The Supreme Court has held that state immigration laws can be preempted by federal law in several ways. . . . Under the first test, the Court must determine whether a state statute is a regulation of immigration. Since the power to regulate immigration is unquestionably exclusively a federal power, any statute statute which regulates immigration is constitutionally prescribed." (emphasis added)).
74. See Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 533 (M.D. Pa. 2007) (holding that the Hazleton ordinance was preempted by federal law and thus unconstitutional).
75. See id. at 515-17 (describing the tenant-registration ordinance and amendments).
76. See id. at 530-32 (concluding that the Hazelton ordinance attempted to make de facto de-selection decisions about many immigrants whom the federal government had allowed to remain in the United States).
77. 239 U.S. 33 (1915).
78. Id. at 42 (citation omitted).
79. See, e.g., Graham v. Richardson, 403 U.S. 365, 378-79 (1971) ("The state statutes at issue in the instant cases impose auxiliary burdens upon the entrance or residence of aliens who suffer the distress, after entry, of economic dependence on public assistance. Alien residency requirements for welfare benefits necessarily operate . . . to discourage entry into or continued residency in the State." (emphasis added));
80. id. at 379-80 ("[I]n the ordinary case an alien, becoming indigent and unable to work, will be unable to live where, because of discriminatory denial of public assistance, he cannot 'secure the necessities of life, including food, clothing, and shelter.' State alien residency requirements that either deny welfare benefits to noncitizens or condition them on longtime residency, equate with the assertion of a right, inconsistent with federal policy, to deny entrance and abode.");
81. Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419 (1948) (redescribing a state rule that precluded some noncitizens from obtaining commercial fishing licenses as a "discriminatory burden [] upon the entrance or residence of aliens," a rule beyond the power of a state because a state "can neither add to or take from the conditions lawfully imposed by Congress upon admission").
82. Compare Villas at Parkside Partners v. City of Farmers Branch, 496 F. Supp. 2d 757, 768-69 (N.D. Tex. 2007) (concluding, like the Hazelton court, that a local ordinance prohibiting landlords from leasing to those without "eligible immigration status" does amount to "a regulation of immigration" - in other words, that it is an immigrant-selecting rule), with Garrett v. City of Escondito, 465 F. Supp. 2d 1043, 1055-56 (S.D. Cal. 2006) (concluding that a local ordinance prohibiting any person from harboring an illegal immigrant in a dwelling unit "does not attempt to impermissibly regulate immigration" because it does not amount "essentially [to] a determination of who should or should not be admitted to the country").
83. See, e.g., MOTOMURA, AMERICANS IN WAITING, supra note 41, at 113-14;
84. Victor C. Romero, The Congruence Principle Applied: Rethinking Equal Protection Review of Federal Alienage Classifications After Adarand Constructors, Inc. v. Peña, 76 OR. L. REV. 425, 452 (1997).
85. See KANSTROOM, supra note 26, at 243-46.
86. It is on this basis, for example, that Kanstroom argues that many deportation rules should be treated as immigrant-regulating rules: these deportation rules are really regulatory rules, he says, because they affect the way in which noncitizens live in the United States. See supra text accompanying notes 26-30.
87. Territoriality is not, of course, the only analytically straightforward alternative. Anoťher possibility is the distinction between ex ante and ex post screening-on making decisions about an immigrant's right to reside on the basis of information that the state has at the time the immigrant arrives, or instead on the basis of information that arises some time after the immigrant enters. Here too it is not hard to see how rules could be uncontroversially classified as embodying ex ante or ex post screening. Moreover, in other work, Eric Posner and I have explained why the distinction be-tween ex ante and ex post rules is extremely significant for any effort to evaluate the structure of immigration law. See Cox & Posner, supra note 4. Again, however, this distinction does not track anything like the distinction between selection and regulation.
88. That said, even this distinction presents two thorny conceptual issues. First, it requires a conception of what it means to be within the territory of a state. The development of the entry fiction in immigration law and recent disagreements about the territorial status of places like Guantanamo Bay should remind us that the concept of territorial presence can still produce its share of disagreement. Compare Rasul v. Bush, 542 U.S. 466, 480 (2004) ("By the express terms of its agreement with Cuba, the United States exercises complete jurisdiction and control over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses." (internal quotation marks omitted)), with id. at 497 (Scalia, J., dissenting) ("[T]oday's opinion . . . extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts."). Second, the territorial distinction requires a conception of what it means for a legal rule to "apply to" or "legally coerce" a person. Rules that exclude noncitizens at the border clearly apply to them, but those same rules also often have profound effects for those already living within the territory. See Cox, supra note 18 (discussing the consequences of admission rules for those who are territorially present);
89. see also infra text accompanying note 123. This complicates the question whether such rules should be thought of as applying to persons within or to persons outside the territory.
90. See supra Part I (discussing the widespread disagreement about how to classify such legal rules).
91. Note that this point is true for any conceptual distinction that turns on the status of the noncitizen-even if the relevant marker of status is not territoriality. Thus, my point applies mutatis mutandus if we deem a person's legal admission into the United States as the relevant determinant of status, rather than their entrance into the physical territory (which could be with or without legal permission). All such status-based arguments about the structure of immigration law share the fundamental similarity of focusing on some aspect or characteristic of the noncitizen. But the central point of Part I was to show that, as a descriptive matter, such status-based theories cannot explain wide swaths of immigration law.
92. Thus, I am not simply making a claim about the imprecision of legal categories generally, about the difference between rules and standards, or about the distinction between hard and easy cases.
93. See 8 U.S.C. §§1151-1160 (2006) (describing grounds of admission and numerical limitations). See generally ARISTIDE R. ZOLBERG, A NATION BY DESIGN: IMMIGRATION POLICY IN THE FASHIONING OF AMERICA (2006) (surveying the historical development of America's admission system).
94. See 8 U.S.C. § 1227 (describing grounds of deportability).
95. Id. § 1227(a) (2) (A)(iii).
96. Note that, ex ante, such a rule also creates selection pressure. The existence of criminal deportation provisions can affect the decisions that potential immigrants make about whether to come to the United States. For example, the risk of erroneous deportation on the basis of the criminal provision could discourage risk-averse noncitizens from immigrating.
97. See KANSTROOM, supra note 26, at 4-6.
98. For a discussion of the choice between ex ante and ex post screening rules, see Cox & Posner, supra note 4.
99. See 8 U.S.C. § 1227(a)(2) (describing the classes of crimes resulting in deportability).
100. See id. § 1182(a) (6) (A) (i) (making inadmissible-and hence subject to removal-any "alien present in the United States without being admitted or paroled");
101. id. at § 1182(a)(6)(C) (i) (making inadmissible-and hence subject to removal-any noncitizen who procured admission "by fraud or willfully misrepresenting a material fact").
102. It is tempting to think that there is an exception to this logic: one might argue that deportation can affect the daily lives and behavior of immigrants only to the extent that the noncitizens can affect the risk of deportation by changing their behavior. Thus, one might argue, pure status-based reasons for removal cannot produce the same pressure for an immigrant to change her behavior. The explanation of deportation based on unlawful status belies this argument. And the same is true for other status-based removals. So, for example, even deportation based solely on an immigrant's race can create incentives for the immigrant to act in particular ways, even though she cannot change her race (in any conventional sense). See generally KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS (2006) (discussing societal pressure to conform even immutable characteristics such as sexuality and race).
103. Rather than restricting the set of putative selection rules on the basis of the information used for the selection decision, this restriction is based on the timing of the selection decision. For a discussion of these twin dimensions of rules that regulate immigrants' rights to reside in a state, see Cox & Posner, supra note 4.
104. See ROBERT E.B. LUCAS, SWED. MINISTRY FOR FOREIGN AFFAIRS, INTERNATIONAL MIGRATION AND ECONOMIC DEVELOPMENT: LESSONS FROM LOW-INCOME COUNTRIES (2005) (discussing educational choices of Filipino students as a means of gaining admission to the United States);
105. Michel Beine et al., Skilled Migration and Human Capital Formation 13-15 (Nov. 2006) (unpublished manuscript), available at http://web.econ.uic. edu/espe2007/paper/D13.pdf (providing some empirical evidence that the admission rules in receiving states influence the education decisions of potential migrants in sending states).
106. Cf. Mari Kangasniemi et al., Is the Medical Brain Drain Beneficial? Evidence from Overseas Doctors in the UK (Feb. 2004) (unpublished manuscript), available at http://cep.lse.ac.uk/pubs/download/dp0618.pdf (surveying Indian doctors working in the United Kingdom and determining that only a minority of doctors from developing countries considered the possibility of migration when they chose to obtain medical degrees).
107. One interesting recent example comes from Denmark. In 2002, Denmark changed its family-reunification grounds for immigration. Prior to that point, a noncitizen living in anotfier country could obtain an immigrant visa if she married an immigrant living in Denmark. After July 1, 2002, a family-reunification visa was not available if one of the marriage partners was below twenty-four years of age. The change was designed to reduce the number of arranged marriages and to reduce the number of nonwestern immigrants entering Denmark. A recent study finds, perhaps unsurprisingly, that the change in admission rules altered the marriage behavior of immigrants and their potential spouses. See Helena Skyt Nielsen et al., The Effect of Marriage on Education of Immigrants: Evidence from a Policy Reform Restricting Spouse Import (Inst, for the Study of Labor Discussion Paper Series No. 2899, 2007), available at http://ssrn.com/abstract=1000373.
108. See supra text accompanying notes 33-36.
109. This does not mean, of course, that all migrants will respond to the selection pressure imposed by such a rule by altering their migration decisions. There are many reasons why such a rule might not affect a particular noncitizen. First, and most straightforwardly, the benefits from migration might be so great that the burden does not dissuade the immigrant from migrating (in other words, the immigrant might be inframarginal rather than marginal). Second, the immigrant might not have complete information about the existence of the rule or its consequences at the time she makes her migration decision. (I return to this point in Part IV.A.) Third, the immigrant might, for a variety of cognitive reasons, be overly optimistic about the benefits of migration or the significance of the rule's burden. These possibilities suggest a number of reasons why, as a matter of institutional design, such rules could have consequences far different from those that a state might intend or for which it might hope. For example, they suggest that some regulatory efforts might well not be effective or might not be worth their cost given the actual decision-making process of potential migrants. This is an important point, as the small economics literature on the institutional design of immigration systems generally overlooks many of these possibilities by assuming an overly simplistic model of immigrant decision making.
110. See 8 U.S.C. § 1184(n) (2006) (placing some limits on the job flexibility of highly skilled workers in the country on temporary employment visas).
111. See, e.g., Ayelet Shachar, The Race for Talent: Highly Skilled Migrants and Competitive Immigration Regimes, 81 N.Y.U. L. REV. 148, 149-61 (2006) (discussing how the demand for highly skilled migrants can shape the immigration policies of countries competing for those migrants). Note that even legal rules that do not target noncitizens, such as tax policies or redistribution policies, can produce selection effects by altering potential migrants' decisions about where to live in the world.
112. See, e.g., Jeffrey Grogger & Gordon H. Hanson, Income Maximization and the Sorting of Emigrants Across Destinations 21-25 (Feb. 2007) (unpublished manuscript), available at http://www.princeton.edu/~ies/ Spring07/HansonPaper.pdf (presenting some empirical evidence that more progressive social policies tend to reduce thre average skill level of immigrants).
113. See LINDA BOSNIAK, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP 37-76 (2006) [hereinafter BOSNIAK, THE CITIZEN AND THE ALIEN];
114. KANSTROOM, supra note 26, at 5-6, 10-12, 124-30 (describing the difference between deportation as a tool for "extended border control" and "social control");
115. MOTOMURA, AMERICANS IN WAITING, supra note 41, at 189-91, 194-200, 203-04;
116. Linda Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. REV. 1047, 1053-57 (1994) [hereinafter Bosniak, Membership] (highlighting the relationship between immigration and alienage law).
117. In this way, legal scholarship concerning immigration is somewhat disconnected from the way that social scientists talk about rules that regulate immigrants. For example, the sparse economics literature on the institutional design of immigration systems treats the deep behavioral connection between selection effects and regulatory effects as a foundational premise, and for that reason, draws essentially no distinction between so-called selection rules and regulatory rules. See, e.g., Mohammad Amin & Aaditya Mattoo, Can Guest Worker Schemes Reduce Illegal Immigration? 3-4 (World Bank Policy Research, Working Paper No. 3828, 2006), available at http://econ.worldbank.org (search "Data & Research" for "3828") (finding that guest-worker schemes are an inefficient way to combat illegal migration);
118. Grogger & Hanson, supra note 80, at 21-25, 28-34;
119. Karen Heimbuchel & Oliver Lorz, Temporary Immigration Visas 2-3 (Feb. 23, 2007) (unpublished manuscript), available at http://ssrn.com/ abstract=964858 (examining the economic effects of issuing tempo-rary visas to foreign nationals). Similarly, the sociological literature on the ways in which legal structures affect migration patterns also treats both types of rules as substitute mechanisms that each have effects on migration patterns. See, e.g., DOUGLAS S. MASSEY ET AL., WORLDS IN MOTION: UNDERSTANDING INTERNATIONAL MIGRATION AT THE END OF THE MILLENIUM 270-74, 288-89 (1998).
120. This literature was spawred in part by Charles Tiebout's seminal article on the provision of local public goods. Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956).
121. See, e.g., Mark J. Roe, Delaware's Competition, 117 HARV. L. REV. 588, 600-07 (2003) (proposing that Delaware competes not only with other states, but also with the federal government, for corporate tax revenue);
122. Roberta Romano, Competition for Corporate Charters and the Lesson of Takeover Statutes, 61 FORDHAML. REV. 843, 844-46 (1993) (discussing how state takeover regulation affects competition among states). There are many other analogs that do not involve spatial sorting. In democratic theory, for example, scholars often focus on two intertwined consequences of electoral rules: (1) the rules' selection effects (i.e., the effects on the types of representatives selected), and (2) the rules' behavioral effects (i.e., the effects on the behavior of office-holders).
123. Cf. Adrian Vermeule, Essay, Selection Effects in Constitutional Law, 91 VA. L. REV. 953, 995-98 (2005) (discussing the structure of constitutional law from these twin perspectives).
124. See supra note 74.
125. This causal focus would radically reshape immigration law because the predominant consequences of an immigrant-affecting rule will often not track any of the existing intuitions in doctrine or scholarship about which rules are selection rules and which are regulatory rules. This is the central thrust of Part II.A. And it is easy to imagine myriad examples not included in that discussion. For example, the immigration code excludes those who lack certain vaccinations, and many would describe this as an archetypical selection rule. See 8 U.S.C. § 1182(a)(1)(A)(ii) (2006). Contrary to that intuition, however, it is quite possible that this rule has only a tiny effect on who actually comes to the United States but a substantial behavioral effect, causing large numbers of people to be vaccinated who otherwise would not be. In contrast, consider a rule that many might classify as regulatory: the post-9/11 regulations that required many noncitizens from predominandy Muslim countries to specially register with the FBI.
126. See Registration of Certain Nonimmigrant Aliens from Designated Countries, 68 Fed. Reg. 8046 (Feb. 19, 2003);
127. Fed. Reg. 2363 (Jan. 16, 2003);
128. Fed. Reg. 77,642 (Dec. 18, 2002);
129. Fed. Reg. 77, 136 (Dec. 16, 2002);
130. Fed. Reg. 70,526 (Nov. 22, 2002);
131. Fed. Reg. 67,766 (Nov. 6, 2002);
132. Fed. Reg. 57,032 (Sept. 6, 2002);
133. see also 8 U.S.C. § 1303(a) (authorizing the Attorney General to prescribe special registration for certain classes of aliens). It is quite possible that this rule had a much greater effect on where noncitizens chose to
134. See generally Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998);
135. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000);
136. David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. CHI. L. REV. 935 (1989).
137. The functional identity of these two rules makes all the more starting the fact that much immigration law and scholarship suggest that they should be subject to different sorts of scrutiny. See supra Part I.B (discussing the different scrutiny accorded to admission rules and so-called alienage rules).
138. The difficulty with this approach to distinguishing between selection and regulation rules is illustrated by the near-identical attempt of one of the leading immigration-law casebooks to distinguish "immigration law" from "alienage law." The casebook begins a chapter on alienage law with definitions of the two terms. It first explains that "immigration law . . . as traditionally defined, concerns the admission of noncitizens to the United States and the terms under which they may remain." ALEINIKOFF ET AL., supra note 20, at 1191 (emphasis added). But by including in the formulation of immigration law the terms under which noncitizens are permitted to remain, the definition sweeps up essentially every type of immigrant-affecting rule. This is because, as explained above, any rule restricting the rights of noncitizens can be formally recast as a condition of entry or continuing residence. As an analytic matter, therefore, this definition leaves nothing in the category of alienage law. This fact is highlighted by the casebook's effort a few sentences later to define alienage law in a way that distinguishes it from immigration law: "Other differences between citizens and permanent residents are part of alienage law, which as traditionally defined is distinguished from immigration law and addresses other matters relating to the legal status of noncitizens." Id. at 1191. A careful reading reveals that this definition has no analytic content. Alienage law is defined simply as that which is not immigration law-as any "other differences." But since the definition of immigration law given is capacious enough to encompass nearly every conceivable legal rule-including the restrictions on employment and access to public assistance that are at issue in the cases in this chapter, a chapter ostensibly dealing with "alienage law"-the definition of alienage law is either incoherent or simply a null set.
139. See, e.g., Washington v. Davis, 426 U.S. 229, 240-41 (1976) (formalizing the requirement that plaintiffs prove discriminatory purpose to make out a claim under the Equal Protection Clause);
140. see also Strauss, supra note 87, at 950-51 (describing and criticizing the focus on discriminatory intent in modern Equal Protection Clause jurisprudence). Closely related are the various theories of constitutional law that focus on the "expressive significance" or "social meaning" of a particular legal rule. See Anderson & Pildes, supra note 87.
141. See, e.g., MOTOMURA, AMERICANS IN WAITING, supra note 41;
142. T. Alexander Aleinikoff, Citizens, Aliens, Membership and the Constitution, 7 CONST. COMMENT. 9 (1990).
143. See Aleinikoff, supra note 91.
144. See, e.g., BOSNIAK, THE CITIZEN AND THE ALIEN, supra note 81, at 74 (distinguishing the legal rules to which noncitizens are subject between those governing "admission to community membership" and those governing "general status of territorially present persons").
145. See, e.g., id. at 75.
146. MICHAEL WALZER, SPHERES OF JUSTICE 61-63 (1983).
147. Id. at 62.
148. Id. at 41-42, 48.
149. See, e.g., MOTOMURA, AMERICANS IN WAITING, supra note 41, at 50-53, 190-91. Bosniak makes a similar point: The dispute concerns the question whether discriminatory treatment of aliens is to be understood as a legitimate exercise of the government's power to regulate membership or as an illegitimate violation of their rights as persons. . . . [I]n our legal system, noncitizens are subject, broadly speaking, to two distinct regimes of regulation and relationship: the first governs admission to community membership, and the second governs the general status of territorially present persons. The question in the cases is always which regime controls . . . . BOSNIAK, THE CITIZEN AND THE ALIEN, supra note 81, at 74.
150. See, e.g., Bosniak, Membership, supra note 81, at 53-56 (discussing the alienage case law that perpetuates this incoherence).
151. See, e.g., WALZER, supra note 95.
152. See id. at 62 ("[T] he rule of citizens over non-citizens, of members over strangers, is probably the most common form of tyranny in human history.").
153. See id. at 64-65, 304-05.
154. See, e.g., DOUGLAS S. MASSEY ET AL., BEYOND SMOKE AND MIRRORS: MEXICAN IMMIGRATION IN AN ERA OF ECONOMIC INTEGRATION 20-21 (2002) (discussing cyclical and temporary migration from Mexico to the United States).
155. See Cox & Posner, supra note 4, at 813, 821-22 (discussing the institutional design issues raised by these problems).
156. See BOSNIAK, THE CITIZEN AND THE ALIEN, supra note 81, at 63-64 (noting that Walzer does not consider the possibility of unauthorized entry).
157. See WALZER, supra note 95, at 61 ("No democratic state can tolerate the establishment of a fixed status between citizen and foreigner (though there can be stages in the transition from one of these political identities to the other).").
158. See id. at 60 ("[T] hey must be possessed of those basic civil liberties whose exercise is so much preparation for voting and office holding.").
159. See, e.g., MOTOMURA, AMERICANS IN WATTING, supra note 41, at 120-21, 155-57 (discussing the Supreme Court's recognition of a probationary period in Harisiades v. Shaughnessy, 342 U.S. 580 (1952), and explaining that a waiting period is consistent with immigration as transition).
160. See Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. S453, S464-71, S486-87 (2002) (recognizing a spectrum of property rights with exclusion and governance as endpoints).
161. See id.
162. Consider, for example, the distinction between ex ante and ex post screening rules that Eric Posner and I have developed elsewhere. See Cox & Posner, supra note 4, at 824-27.
163. One reason for not taking that approach here is that much of the existing work that considers the relevance of these high-level theories for immigration policy concerns a very abstract question: whether any significant restrictions on the free movement of people across borders are defensible. See, e.g., Joseph H. Carens, Aliens and Citizens: The Case for Open Borders, 49 REV. POL. 251 (1987) (drawing on several contemporary approaches to political theory to argue for open borders);
164. Timothy King, Immigration from Developing Countries: Some Philosophical Issues, 93 ETHICS 525, 536-31 (1983) (summarizing various philosophical arguments for and against relatively open borders);
165. Michael Blake & Matthias Risse, Is There a Human Right to Free Movement? Immigration and Original Ownership of the Earth 3-5 (John F. Kennedy Sch. of Gov't Faculty Research Working Paper Series, Paper No. RWP06-012, 2006), available at http://ssrn.com/abstract=902383 (examining the relationship of persons to land as a source of moral constraints on immigration controls). This debate is important, but it is somewhat disconnected from the actual institutional details that legal scholars of immigration should be interested in evaluating. The most important questions confronting American immigration law today do not include the question whether we should have open borders. Instead, the questions concern issues like the desirability of particular temporary worker programs, the appropriateness of America's emphasis on family migration rather than migration on some other basis, and the usefulness of our large-scale criminal deportation system.
166. See, e.g., MOTOMURA, AMERICANS IN WAITING, supra note 41, at 189 ("The essence of immigration as transition is giving lawful immigrants the best chance to belong in America, in a broad sense that goes beyond formal citizenship to include integration into American society."); Hiroshi Motomura, Choosing Immigrants, Making Citizens, 59 STAN. L. REV. 857, 869-70 (2007) [hereinafter Motomura, Choosing] (emphasizing that a primary concern of legal immigrants is the transition to permanent residence and citizenship);
167. Cristina M. Rodriguez, Guest Workers and Integration: Toward a Theory of What Immigrants and Americans Owe One Another, 2007 U. CHI. LEGAL F. 219, 222-23 (arguing that guest worker programs should be avoided because they inhibit integration).
168. For background on this issue, see, for example, RICHARD ALBA & VICTOR NEE, REMAKING THE AMERICAN MAINSTREAM: ASSIMILATION AND CONTEMPORARY IMMIGRATION (2003).
169. See id. at 215-70 (reviewing the historical record of "key areas" of contemporary assimilation, including language, socioeconomic status, residential change, and intermarriage). In practice, of course, integration also involves the receiving state's changing in response to the presence of new residents. See Susan K. Brown & Frank D. Bean, Assimilation Models, Old and New: Explaining a Long-Term Process, MIGRATION INFORMATION SOURCE (Migration Pol'y Inst., Wash., D.C.), Oct. 2006, http://www.migrationinformation.org/Feature/display. cfm?id=442 (discussing the reciprocal nature of the process of integration).
170. See JON ELSTER, NUTS AND BOLTS FOR THE SOCIAL SCIENCES 13-21 (1989) ("[A]ctions are explained by opportunities and desires-by what people can do and by what they want to do.").
171. Cf. MAE M. NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA 96-126 (2004) (discussing these sorts of mechanisms in the context of Filipino migration during the early part of the twentieth century).
172. See, e.g., MOTOMURA, AMERICANS IN WAITING, supra note 41, at 151-67.
173. See generally Plyler v. Doe, 457 U.S. 202, 221-23 (1982) (concluding that restricting noncitizen children's access to public education would interfere with their integration into the United States).
174. See, e.g., SAMUEL P. HUNTINGTON, WHO ARE WE? 158-70 (2004) (arguing that linguistic enclaves threaten the process of integration).
175. See THE NEW IMMIGRATION: AN INTERDISCIPLINARY READER 105-215 (Marcelo M. Suárez-Orozco et al. eds., 2005) (discussing the role that family structures can play in integration);
176. see also Cox & Posner, supra note 4, at 854-55 (same).
177. See supra text accompanying notes 41-44.
178. This is a common theme in the literature on assimilation and integration. See, e.g., BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 88-95 (1980);
179. HUNTINGTON, supra note 120, at 178-220.
180. See supra text accompanying notes 26-32.
181. See KANSTROOM, supra note 26, at 10-12.
182. See supra text accompanying notes 26-30.
183. Remember that Deportation Nation is also wrong to suggest that only deportation rules that are triggered by post-entry behavior operate in part as regulatory mechanisms. As I explained in Part II, even putative selection rules, such as the rule that makes deportable a person who is in the country unlawfully, operate in part as regulatory mechanisms. This rule creates pressure for those in the country unlawfully to live in ways minimizing their contact with government officials. See supra text accompanying notes 72-73. As a result, undocumented immigrants often have less access to many of the institutions of civil society (such as law enforcement) than the rest of the popu-lation-something of potentially serious concern for those concerned about second-class status.
184. See, e.g., GEORGE J. BORJAS, HEAVEN'S DOOR: IMMIGRATION POLICY AND THE AMERICAN ECONOMY 62-64 (1999) (arguing that an immigration policy that encourages less-skilled workers to enter the United States will harm the economic well-being of native low-wage workers).
185. The argument would apply largely unchanged if one were concerned more about preserving certain kinds of opportunities than about preventing the creation of second-class groups. Concern for opportunity-limiting rules might lead us to be skeptical of rules that restrict immigrant access to things like employment or voting. But as I explained in Part II, even archetypical selection rules like admission requirements can restrict those opportunities. So if our normative concern is discouraging legal rules that interfere with an individual's opportunity to pick a particular profession or spouse, for example, there will be little reason to distinguish between so-called selection rules and other rules.
186. See RICHARD A. EPSTEIN, BARGAINING WITH THE STATE (1993) (exploring the desirability of limiting the power of the state to bargain with its citizens);
187. Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1415 (1989) ("The doctrine of unconstitutional conditions holds that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether.").
188. See Saul Levmore, Lecture, Unconditional Relationships, 76 B.U. L. REV. 807, 808-13 (1996).
189. See, e.g., Landon v. Plasencia, 459 U.S. 21, 33 (1982) ("[A] continuously present permanent resident alien has a right to due process [when threatened with deportation]."); The Japanese Immigrant Case, 189 U.S. 86, 101 (1903) (requiring that an immigrant be given "all opportunity to be heard upon the questions involving his right to be and remain in the United States" before deportation).
190. See, e.g., WALZER, supra note 95, at 56-61 (objecting to all guest worker programs on these grounds).
191. See 8 U.S.C. § 1184(g) (4) (2006) (limiting the period of authorized admission for temporary-worker visas to six years);
192. C.F.R. §§214.2(h)(9)(iii), (h)(15)(ii)(B) (2008) (outlining the various time-period restrictions on approvals for temporary workers, depending on their occupations).
193. See 8 U.S.C. § 1613.
194. With a few potential exceptions, states and local governments have never permitted noncitizens who were temporary residents to vote. See generally RON HAYDUK, DEMOCRACY FOR ALL: RESTORING IMMIGRANT VOTING RIGHTS IN THE UNITED STATES 87-107 (2006) (analyzing examples of immigrants voting in local elections);
195. KEYSSAR, supra note 36 (surveying the history of the franchise in the United States, including restrictions on voting by noncitizens). In contrast, for over a century clear Supreme Court precedent has accorded noncitizens charged with crimes the same due process protections available to citizens. See Wong Wing v. United States, 163 U.S. 228, 238 (1896).
196. See, e.g., SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY 1-64 (3d ed. 2007) (surveying cases that highlight the complicated constitutional status of voting rights in the United States). Of course, some process-perfecting theories of constitutional law flip this presumption and treat full access to the political process as perhaps the most important right.
197. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST 116-25 (1980) ("[U]nblocking stoppages in the democratic process is what judicial review preeminendy ought to be about, and denial of the vote seems the quintessential stoppage.").
198. See 8 U.S.C. § 1182 (2006) (setting out the grounds of inadmissibility, including, for example, insanity, drug addiction, and criminality).
199. See, e.g., Shachar, supra note 80, at 164-65 (proposing that skilled migrants seek not only improved employment but also a home country that will provide valuable benefits).
200. There is a substantial literature by sociologists studying these information networks and their role in facilitating migration. See, e.g., STEPHEN CASTLES & MARK J. MILLER, THE AGE OF MIGRATION 21-32 (3d ed. 2003) (surveying literature on the different theories of migration, including informal information networks). But for the most part this work does not focus specifically on the transmission of information about legal conditions in the receiving state.
201. See Lior Jacob Strahilevitz, Information Asymmetries and the Rights to Exclude, 104 MICH. L. REV. 1835 (2006).
202. Id. at 1851.
203. See supra text accompanying notes 48-64.
204. Cf. Randal C. Archibold, Arizona Is Seeing Signs of Flight by Immigrants, N.Y. TIMES, Feb. 12, 2008, at A13 (reporting that some immigrants in Arizona are returning to their home countries in part because of restrictive state laws that penalize employers for hiring immigrants who lack work authorization); Illegal Immigrants Leaving Arizona, Associated Press, USA TODAY, Dec. 22, 2007, http://usatoday.com/news/nation/2007- 12-22-immigration-leaving-N.htm (same).
205. See AUDREY SINGER, THE BROOKINGS INST., THE RISE OF NEW IMMIGRANT GATEWAYS, available at http://www.brookings. edu/~/media/Files/rc/reports/2004/02demographics-singer/20040301-gateways.pdf (analyzing past, present, and projected future gateways for immigrants to the United States);
206. Rodriguez, supra note 48, at 588-89 (describing the rise of Iowa as a new seulement area for immigrants).
207. For example, Michael Walzer takes the position that political morality requires every nation state to guarantee freedom of internal movement. See, e.g., WALZER, supra note 95, at 36-42. He famously invoked this principle to bolster his defense of national restrictions on immigration.
208. See id. at 39 (arguing that the absence of national border controls would lead to the creation of a "thousand petty fortresses" as local governments worked to exclude those they deemed undesirable).
209. See, e.g., Roderick M. Hills, Jr., Federalism and Fear: Sorting and Democratizing Politics in Federal Regimes (Jan. 8, 2008) (unpublished manuscript), available at http://www.law.uchicago.edu/files/law-and- politics-workshop-hills.pdf (analyzing the history of sorting policies in Western societies and their various degrees of success at limiting internal conflict).
210. See, e.g., Saenz v. Roe, 526 U.S. 489, 504-07 (1999) (holding that a state's one-year residency requirement to receive benefits under the federal Temporary Assistance to Needy Families program unconstitutionally infringed upon the right to travel);
211. cf. U.S. CONST, art. IV, §2 ("The citizens of each State shall be entitied to all Privileges and Immunities of Citizens in the several States.").
212. See supra text accompanying notes 26-30.
213. See, e.g., Cox & Posner, supra note 4, at 835-44 (suggesting some reasons why the current deportation rules may make litde sense).
214. See supra text accompanying notes 72-76.
215. See 8 U.S.C. § 1182(a) (9) (A) (2006) (setting five- and ten-year bans on readmission for immigrants previously deported). Some deportable noncitizens are eligible for a statutory alternative to deportation called "voluntary departure."
216. See 8 U.S.C. § 1229(c). Noncitizens who depart the country pursuant to a voluntary departure agreement avoid the collateral legal consequences of deportation and may immediately reapply for admission.
217. See 8 U.S.C. §§ 1182, 1229(c). Often, however, these non-citizens cannot qualify for any of the employment-, family-, or refugee-related grounds of admission. And recent changes in the law have made voluntary departure a less attractive option for noncitizens.
218. See ALEINIKOFF ET AL., supra note 20, at 820-21.
219. What I term "temporary deportation" is quite different from any existing rule in American immigration law. It is true that, under the current system, some noncitizens have the right to reapply for admission after a period of time. Nonetheless, the right to reapply still requires the noncitizen (1) to come within one of the grounds of admissibility (such as the family- or employment-related grounds); (2) to fit within whatever applicable quotas might limit their eligibility for admission; and (3) to not be deemed inadmissible. As a formal matter, therefore, they have no legal right to reenter. And as a practical matter, reapplying for admission will often be futile because the basis of a noncitizen's prior deportation often constitutes a ground of inadmissibility. Temporary deportation would flip the legal entitlement at the end of the temporary period and accord the noncitizen the right to reenter. In many cases this would lead to dramatically different consequences.
220. This is an important problem in immigration law today. The existing immigration adjudication system has been widely criticized by scholars, jurists, and advocates. See, e.g., Adam B. Cox, Deference, Delegation, and Immigration Law, 74 U. CHI. L. REV. 1671 (2007) (suggesting that the skepticism of Judge Posner and others towards immigration courts may reflect either a nondelegation norm or dissatisfaction with the quality of agency decision making). Most of these critics have advocated internal reforms to improve the system. They have argued for things like more-qualified immigration judges or appointed counsel for immigrants in removal proceedings. These suggestions are valuable, but they overlook another avenue of improvement: external changes to the structure of immigration law that reduce the burden on the system of immigration adjudication. Making changes that promote the bargained resolution of a much higher fraction of immigration cases is one way to reduce this burden.